A couple of decades ago during a high profile mob case, Chicago courtroom artist Andy Austin sketched the jurors in their likenesses with one exception: there were paper bags over their heads.
The jurors' names were not revealed to the public (or to the lawyers in the case) and the jury had been sequestered, evidently to protect them from would-be tamperers and to keep them isolated from any news accounts of the case.
A similar sketch could be drawn today in the courtroom of U.S. District Judge James Zagel, but in place of paper bags, an artist might top the jurors' torsos with computer monitors or smart phones.
Zagel, who is presiding over the federal corruption trial of former Gov. Rod Blagojevich and his brother, Robert Blagojevich, had ruled that the jurors' names would not be revealed until after the verdict was announced. On the first day of jury selection, Judge Zagel told a lawyer for the Chicago Tribune and other news organizations seeking transparency that he was concerned that bloggers would try to reach jurors.
And last week, responding to a 7th U.S. Circuit Court of Appeals opinion that he hold a hearing on the question, Zagel said he himself had received three emails about this case and had been called out to on the street by someone expressing an opinion about Blagojevich.
In short, technology, which has made us all so accessible, necessitated opaqueness.
Or did it? The judge is likely pondering the question in preparation for a hearing at the end of the month.
The 7th U.S. Circuit Court of appeals ordered the hearing, saying the judge erred by telling jurors they would not be identified and subsequently telling lawyers for the news organizations that their motion was untimely.
There is a presumption of openness in court proceedings, including publicizing the names of seated jurors during a trial. But the presumption can be overcome if a judge makes a showing that the "jurors' safety would be jeopardized by public knowledge, or the defendant has attempted to bribe or intimidate witnesses or jurors."
The court also noted that it and the U.S. Supreme Court have never decided precisely the criteria for determining when jurors' names can be kept secret until the end of a trial.
Under the Jury Selection and Service Act, judges do have discretion to keep jurors' names secret "in any case where the interests of justice so require." But they must make a showing that their fears of events that could affect jurors' safety and impartiality be warranted.
"The judge expressed concern that jurors would be peppered with email and instant-message queries in this high-visibility case. These incoming messages may be viewed as harassment (the anticipation of which would make it more difficult to find people willing to serve as jurors) and certainly would tempt the jurors to engage in forbidden research and discussion," the 7th Circuit said in an opinion written by Chief Judge Frank Easterbrook.
But the court wisely requests some evidence from the judge that the Internet has adversely affected the conduct of jurors or members of the public.
"Have jurors in other publicized cases been pestered electronically (email, instant messaging, or phone calls), or by reporters camped out on their doorsteps?" the court asks. "If judges in other high visibility cases have told jurors to ignore any unsolicited email or text messages, have those instructions been obeyed? If not, do any practical alternatives to sequestration remain?"
The standard instructions to jurors that they refrain from reading, watching or listening to any accounts about the trial is sufficient and broad enough to cover Internet communications. And perhaps, as long time criminal defense attorney Patrick Tuite suggested, the jurors could be ordered to report to the judge if anyone tries to reach them on a social networking site or through email and instant messaging.
Tuite, who represented Albert Tocco - the defendant in the case that resulted in the paper bag sketch - even suggests checking jurors' phones if they've been contacted in order to find the identity of the person who tried to reach them.
It is a crime for members of the public or press to contact a sitting juror during a trial. These precautions could be sufficient.
Tuite noted that in the Tocco case, the decision to keep the jury truly anonymous had caused great controversy and was quite unusual at that time.
"We were fighting over the issue and I said 'are we going to be seeing their faces or are they going to have bags on their heads," Tuite said in an interview. There are things lawyers can discern by names and addresses and ethnicities, Tuite said. (It should be noted that in the Blagojevich case, the lawyers do know the identities of the jurors).
First Amendment advocates complain that it has become more common for judges to withhold the names of jurors, preventing the press from conducting its watchdog role by researching those who are sitting in judgment of a high profile defendant. Lawyers for the news organization noted that press investigations of jurors in the trial of former Gov. George Ryan had learned that jurors had lied on their questionnaires. Two jurors were replaced before deliberations.
"Judges are getting more and more protective of jurors. Basically, juror privacy in some
courtrooms trumps almost all other concerns about a constitutional trial," said Lucy Dalglish, the executive director of the Reporter's Committee for Freedom of the Press.
"It's appalling and it has to stop. Are there jerks who post things on the Internet that are inappropriate, ill-informed and stupid? You bet. We've got to get used to the Internet age. We are rapidly moving toward an anonymous jury system in the federal courts. This will make it impossible for journalists and others to engage in public oversight of the jury selection process."
The state rested its case this week and the defense is scheduled to begin presenting evidence on Monday. The hearing on the juror identification issue is scheduled for July 29.